Editorial: Fix filibuster, but don't go to war over it

Dec. 3, 2012
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When the idealistic young senator played by Jimmy Stewart wanted to stop a corrupt appropriations bill in the classic 1939 movie "Mr. Smith Goes to Washington," he had to go to the Senate floor and filibuster until he fainted from exhaustion. / IMP/GEH STILL COLLECTION

by The Editorial Board, USA TODAY

by The Editorial Board, USA TODAY

When the idealistic young senator played by Jimmy Stewart wanted to stop a corrupt appropriations bill in the classic 1939 movie Mr. Smith Goes to Washington, he had to go to the Senate floor and filibuster until he fainted from exhaustion. Today, Stewart's Sen. Jefferson Smith could tie up the Senate like that with a simple phone call.

Once rare and generally reserved for defining measures such as civil rights bills, the filibuster has become destructively routine. All a senator has to do these days is phone over to the Capitol and threaten a filibuster, which can start a time-killing procedure that takes 60 votes to shut down. Even then, a determined senator can extend the process an additional 30 hours with a simple objection. The entire procedure can waste four days before ever getting to substantive debate - ample reason to forgo some bills or nominees altogether.

For decades, senators considered the filibuster emergency protection for a determined minority, and typically there were zero to just a handful in a year. But the rise of hyperpartisanship has changed that, and the chamber's aggressive Republican minority has mounted almost 400 filibusters in the past six years. Democrats thought they had a handshake agreement last year to limit the practice, but the deal quickly fell apart with both sides pointing fingers. Now Democrats say they plan to use their majority power next month to change the Senate's rules to impose new limits, and Republicans have threatened a war they warn could shut down the Senate.

Everyone should take a breath. Both sides have a point, and finding common ground could reduce Congress' paralytic dysfunction.

Democrats are right that the tactic has gotten abusive and that something has to give. And Republicans surely recognize that they stand to be victims of the same tactics when they regain the majority some day.

The key piece of the Democrats' still-developing plan would end the telephone filibuster and require that senators actually come to the floor to talk. Filibustering senators could hand off to one another, so no one would have to faint. If a vote to stop the talkathon got more than 50 of the Senate's 100 votes but fewer than the 60 required to cut off debate, the talkers could go on. But if no senator wanted to continue filibustering, a simple majority vote would suffice. The rule is a good compromise. A determined minority could still mount a filibuster punishing enough to force the majority to give up or modify a crucial issue. But it would be far less likely that senators would want to do this all the time.

Republicans say they're enraged that the Democrats plan to ram the changes through on a simple majority vote, rather than with the 67-vote majority the Senate set as the bar for rule changes back in 1975. The Democrats have the better constitutional argument, but that doesn't mean it's smart for them to press the issue. Setting a high, bipartisan bar for significant rules changes makes sense.

And besides, both parties are hypocrites on this issue. In 2005, it was the Republicans who controlled the Senate, and they wanted to change the rules by majority vote to bar the Democrats from filibustering President Bush's judicial nominees. Democrats howled that if the GOP invoked what they called the "nuclear option," they'd shut down the Senate in retaliation. Sound familiar? Today they've simply - and shamelessly - switched roles.

Reason prevailed in 2005 when a "Gang of 14" centrist senators from both parties cut a deal to block the rule change but limit filibusters of Bush's judges. With any luck, the same sort of bipartisanship will emerge this time.